Checkmating Devolution or Genuine Devolution?

 

 

By Austin Fernando
Former Secretary to the Ministry of Defence


(Courtesy: The Nation of February 3, 2008)


Cabinet has appointed a Committee chaired by the Prime Minister to discuss and formulate diverse ways and means to implement the APRC proposals and propose how the 13th Amendment could be implemented in relation to the APRC proposals. A Governor and an Interim Advisory Council (IAC) for the Northern Provincial Council (PC) are to be appointed. This has to be done legally, if the intention of the government is genuine. Otherwise, acting illegally will checkmate even this little devolution attempted.

The objectives of the APRC proposals varied from Minister Tissa Vitharana to Minister Maithripala Sirisena. It was to be ‘executive’ with the involvement of elected representatives (sans TNA!) to the former and advisory to the latter. For Minister Devananda, IAC should ‘act like PC.’

Let me look at legally implementing the main proposals to establish an IAC and a PC.

Existence of Northern PC?        

                                                                                   
The first challenge is that there is no Northern PC ‘to act.’ Does it indirectly imply that the APRC proposals (i.e. IAC) would create Northern PC? This contention challenges Article 154A (2) of the 13th Amendment, which reads that a PC “shall be constituted upon the election of the members of such Council.” Can the IAC create a PC ‘to act?’

Merger                                                                                                                              
13th Amendment planned for a merged north and east. APRC is silent on this. EPDP and TULF always demanded merger so, will they continue merging or withdraw from merging for political expediency? If, as believed, Minister Devananda or Mr. D. Sidhdharthan (former MP) is appointed Head of the IAC and Mr. Anandasangaree the Governor, they may propose legalising merger, as a matter of ‘Tamil aspirations.’ It is legally viable but politically not.

Police Powers           

                                                                                                    
Proposals are silent on police powers. Devolving police powers was shelved by Presidents Premadasa, Wijetunge and Kumaratunga. Will President Rajapaksa risk sharing police powers with Pillaiyan or with a LTTE proxy in the North? Will he devolve police powers to other Provinces? These questions arise due to quoted non-genuine experiences with former Presidents. President Rajapaksa could follow predecessors or be different! Most likely he will follow predecessors and checkmate full implementation of 13th Amendment.

Schools, Hospitals and Land      

                                                                                  
Schools under PCs were taken over as national schools by UNP and SLFP administrations. Same happened to hospitals. No government changed the centralising orders given by UNP’s Lands Minister Paul Perera.

If the IAC is genuinely committed to devolution they will demand police and land administration powers for people to ‘enjoy the fruits of devolution.’ Will the President restore these withdrawn powers? Though legally possible, is it feasible with JHU and JVP breathing fire over the President’s collar?

Empowering PCs       

                                                                                                   
APRC proposals endeavour to implement the 13th Amendment in respect of legislative, executive and administrative powers. If these are to be achieved, it is necessary to able statute making mechanisms, financing and manpower management in PCs. This may require constitutional and legal changes, institutional strengthening, developing fiscal devolution systems and human resource development.

The government’s bureaucracy supported by a centralised political leadership hesitates to devolve power. In 1988, when PCs were established even transferring personnel, vehicles, typewriters or buildings were done stingily. Have they changed? No. What is the legal remedy government has?

Adequacy of funding is another issue in the report to facilitate effectiveness of devolution. After twenty years of existence still the establishment expenditures (Block Grants), are the main fiscal transfers to PCs with complaints of delayed disbursement. Foreign funding is still controlled by the centre and a breakdown of foreign financing shows that it favours the centre with mega projects. Domestic / international borrowings by PCs are not permitted. Therefore, if provincial funding is to be enhanced, though it is not a legal requirement, the President may have to organise a unit to directly deal with the Provinces, Finance Commission and Treasury, while changing even the Constitution / laws, if required.

Northern Interim Advisory Council (IAC)                

                                        
Appointment of the IAC will have the severest legal issues. The APRC has not indicated the legal channels to appoint the IAC. In the absence, let me (non-lawyer), as a layman, look at the possible constitutional provisions that may be used by the Government.
Article 33 (f)

Under Article 33 (f) of the Constitution, the President is empowered to “do all such acts and things not being inconsistent with the provisions of the Constitution or written law…” Perhaps this may be one easy way of establishing an IAC, subject to legal consistency.

As this is a devolution issue the government may specifically consider the provisions in the 13th Amendment. It refers to Articles 154K, 154L 154M or 154T.

Article 154K   

                                                                                                                  
To act under 154K the failure of the PC or Governor has to be proved. There is no Northern PC [Refer Article 154A (2)] and a nonexistent PC cannot be considered failed or succeeded. The Court decision has failed President Jayewardene’s merged North East Province and by appointing a Governor for the Province this government has created the northern PC area as a de-merged unit, but has not created a PC under Article 154A (2). PC area and PC are two entities.

The present North-East Governor sometimes performs better than other Provinces. E.g. NEAAP, NECORD implementation. Therefore, if an ‘administration breakdown report’ is sent by the Governor under 154L, it will only facilitate APRC wish and not declare ground realities. If an elected Northern PC was in existence, this problem could have eased but in its absence, such report may fail to pass the constitutional litmus test. It emanates from the difference between a ‘PC’ and ‘PC area’ or a Province. Further, such report will be a no confidence on the Governor by the Governor!!!

Against such a background, it is unlikely that the President could satisfy on a report given by the Governor “that a situation has arisen in which the administration of the Province cannot be carried on in accordance with the provisions of the Constitution.” Whether there is a loop between PC area and ‘provincial administration’ will be an interesting point of law for the Courts to argue.

Article 154L                                                                                                                     
Let me assume that the President proclaims under Article 154L that he had assumed all or any functions of the administration of the Province. Then he has to go before the Parliament according to Article 154L (3). How confident is the government to take this challenge with JVP protesting on APRC proposals?

If a new Governor is appointed, to be fair, the President has to give him at least one year to prove himself, delaying the appointment of an IAC.



Article 154B (8) (d)                                                                                                            

When the Governor is involved, Article 154B (8) (d) comes in to play where he exercises his powers in accordance with the advice of the Chief Minister, so long as the Board of Ministers commands, in the opinion of the Governor, the support of the majority of the PC. There is no PC and hence no Board of Ministers. Then, are these members of the IAC equivalent to PC Ministers, when they are not even members of the PC, as under 154A (2)?

If IAC members are Parliamentarians conflict of interests will arise. Are these IAC members empowered to hold PC ministerial portfolios or equivalent? If so, under what legal provision? The Governor could rough shod IAC proposals / members, and this could easily happen as those who would be members of IAC will belong to competing political groups.

Devananda Formula and Complications                     

                                              
There was a mechanism similar to IAC that was once introduced by President Kumaratunga on the pressure brought by Minister Devananda. Fourteen years back I worked with Minister Devananda on this issue. But this did not work even after gazetting. Parliamentarians were to lead that institution and President would have thought that this would create conflict of interest. This could be the reason for the current proposals to state that the Governor would be “aided and advised” by the IAC to carry out his executive powers. Hence, Governor will be the focal point and not the IAC.

Article 154T                          

                                                                                           
The other seemingly legal loop is in Article 154T. It empowers the President “to take action or give such directions, not inconsistent with the provisions of the Constitution, as appears to him to be necessary or expedient, for the purpose of giving effect to the provisions of this Chapter or for administrative changes necessary therefore, or for the purpose of removing any difficulties.” The four legal issues arising are:

(a) Whether the action taken is consistent with the Constitution to effect the provisions of the Chapter which is challengeable, as shown earlier.


(b) IAC not being an institutional arrangement in the Constitution or any other law to advise the Governor / PC and therefore the possibility to be interpreted as inconsistent with the Constitution.


(c) The possibility to do administrative changes without introducing new organisations for political expediency and in a constitutionally inconsistent manner.


(d) Need to remove difficulties should be consistent with the Constitution.         

        
I think these have to be addressed by the Prime Minister’s Committee.

As the IAC members are un-elected to the PC, however the appointment is made, advisory relationship will be invalid. The IAC Chairman cannot be the Chief Minister as the latter appointment is specifically stated in the Constitution Article 154F (4). In such event, is the Governor bound to accept any advice from a group of illegitimate appointees? In addition, can the President appoint Members of Parliament (Minister Devananda for example) because it will be inconsistent with law - as they are from Parliament? Conflict of interest between Governor and IAC will leave the Governor victorious. Such events will convert presidential interventions a mockery. These unanticipated legal complications will create complexities in implementing APRC proposals.

Let us assume IAC is informally empowered to overrun the authority of the Governor. But the Governor enjoys a constitutional right only to get advice from the Board of Ministers. Then the presidential decree for the IAC to advise will be questioned as constitutionally inconsistent even to remove difficulties. Hence use of Article 154T may be questioned.

As I am not a lawyer, I could see only from a layman’s point of view. However, I cannot be convinced of the practicality of the application of APRC proposals because it runs against the basic legal stances for devolution. Let lawyers look at these more seriously.

Potential Alternative      

                                                                                            
Rather than trying to find politically visible propositions, the government could think in terms of existing time tested institutional arrangements and involve the Governor to implement in power sharing and promote aggressive implementation of the 13th Amendment. If the government is genuine, to gain currency of the commitment it could take necessary actions to withdraw stumbling blocks mentioned earlier and create credible power sharing mechanisms. Patchworking will create suspicion, exhibit lack of commitment, disinterest and mock devolution.

To prove that this is not a ruse, the government could share these powers with other PCs too. It would popularise the move and reduce the suspicion that ‘full implementation of the 13th Amendment’ is an asymmetrical power sharing exercise for north and east. But the government’s problem could be that these power sharing proposals are less important for solving the national crisis and radical changes are unwanted. Its option could be clearly military and military alone.

I could think of empowering and working through the District Development Committee where parliamentarians, advisors, local authorities, experts or any other appointed by the President could advise the Governor and a senior politician of the district. It does not have the glamour of an IAC. It may downplay the glee observed during the last few days in the media. What is required is not the greatest media hype of politicians but the legality coated with practicality.

Be Long Range!       

                                                                                                    

Finally, I might say this patchwork could serve the north only temporarily and tentatively. It would be prudent to find longer term solutions to serve the people of the north and east as equals of southerners, for which a credible devolution plan should be evolved. Eye washing will dilute political proposals. If patchwork is the need of the hour until a military victory is achieved in the north, it will be better to use a credible and time tested mechanism, rather than politicise every intervention and get hitched to court benches and lose respect for devolution making it stale.